National Solid Wastes Management Ass'n v. Alabama Dept. of Environmental Management

• Decision Date: 08 August 1990
• Docket Number: No. 90-7047,90-7047
• Citation: 910 F.2d 713
• Parties: , 59 USLW 2127, 20 Envtl. L. Rep. 21,316 NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, and Chemical Waste Management, Inc., Plaintiffs-Appellants, v. The ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT; Leigh Pegues, Individually and as Director of the Alabama Department of Environmental Management; and Guy Hunt, Individually and as Governor of Alabama, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 713

910 F.2d 713

31 ERC 1793, 59 USLW 2127, 20 Envtl.

L. Rep. 21,316

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, and Chemical Waste Management, Inc., Plaintiffs-Appellants, v. The ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT; Leigh Pegues, Individually and as Director of the Alabama Department of Environmental Management; and Guy Hunt Individually and as Governor of Alabama, Defendants-Appellees.

No. 90-7047.

United States Court of Appeals Eleventh Circuit.

Aug. 8, 1990.

Fournier J. Gale, III, H. Thomas Wells, Jr., Alfred F. Smith, Jr., Maynard, Cooper, Frierson & Gale, Birmingham, Ala., for plaintiffs-appellants.

Kaye K. Houser, Sirote & Permutt, P.C., Birmingham, Ala., for Hazardous Waste Treatment Council.

Bert Nettles, Alton B. Parker, Jr., Kenneth O. Simon, Spain, Gillon, Grooms, Blan & Nettles, Birmingham, Ala., for defendants-appellees.

Anne S. Almy, Asst. Atty. Gen., Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., amicus curiae, for plaintiffs-appellants.

Roger C. Zehntner, John T. Van Gessel, Chemical Waste Management, Inc., Oak Brook, Ill., for Chemical Waste Management.

E. Dennis Muchincki, Chief, Office of Atty. Gen., Environmental Enforcement Section, Columbus, Ohio, for amicus curiae, State of Ohio.

Appeal from the United States District Court for the Northern District of Alabama.

Before EDMONDSON, Circuit Judge, and HILL ^* and HENDERSON, Senior Circuit Judges.

EDMONDSON, Circuit Judge:

The United States' largest and Alabama's only commercial hazardous waste management facility is located at Emelle, Alabama. The owner and operator of this facility, Chemical Waste Management, Inc. ("ChemWaste"), along with the National Solid Wastes Management Association, a trade association representing the waste management industry, brought this action seeking declaratory and injunctive relief, against the Alabama Department of Environmental Management; Leigh Pegues, Director of the Department; and Guy Hunt, Governor of Alabama (collectively referred to as "defendants" or "Alabama").

The suit challenges Ala.Code Sec. 22-30-11 (Supp.1989), known as the "Holley Bill," which prevents commercial waste management facilities like Emelle from accepting hazardous wastes generated in states other than Alabama unless the other states have met certain statutory requirements. Plaintiffs also challenge two sets of Alabama regulations that require generators of hazardous wastes to receive the state's preapproval before shipping wastes to management facilities in Alabama and that require certain wastes to be pretreated before disposal. See Ala.Admin.Code rr. 14-3-.08 & 14-9-.03 (1989). Before the challenged acts became effective, the Emelle facility accepted hazardous wastes for treatment, storage, and disposal from forty-eight states; eighty-five percent of the wastes disposed of at Emelle were generated outside Alabama.

Plaintiffs challenge the Alabama legislative and administrative acts on two grounds: that the acts are preempted by federal laws and regulations, and that the acts violate the commerce clause of the United States Constitution. ¹ The district court granted summary judgment for defendants, finding the challenged actions to be constitutional. 729 F.Supp. 792. We have plenary review over the district court's decision. See Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1040 (11th Cir.1989).

In deciding this case, our job is not to make policy, but to interpret the federal legislation and regulations to determine Congress's intent and to interpret Alabama's legislative and administrative acts to determine whether they are consistent with the Constitution and the federal environmental statutory scheme. We recognize that serious problems associated with hazardous waste management plague our nation; but whatever our own views may be about the effectiveness of what Congress or Alabama has done, we can only apply the law. We accordingly vacate the district court's grant of summary judgment for defendants on the Holley Bill and on the regulations requiring preapproval because those acts violate the commerce clause. We vacate summary judgment for defendants on the regulations that require pretreatment, to the extent those regulations are dissimilar from regulations promulgated by the Environmental Protection Agency ("EPA"), because Congress has preempted Alabama's actions.

I. THE HOLLEY BILL

A. BACKGROUND

In 1980, the United States Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Secs. 9601-9675 (1982 & Supp. V 1987) ("CERCLA"), designed to accomplish the cleanup of hazardous waste sites. CERCLA established liability standards for persons responsible for unsafe hazardous waste sites and created "Superfund," a fund that the federal government can use when responsible parties do not conduct the cleanups. See 42 U.S.C. Sec. 9607. CERCLA provides for two types of cleanup actions: remedial actions, which are generally long-term or permanent containment or disposal programs, 42 U.S.C. Sec. 9601(24); and removal efforts, which are usually short-term cleanup arrangements of a more immediate nature, 42 U.S.C. Sec. 9601(23).

"A critical step in the implementation of a rational, safe hazardous waste program is the creation of new [hazardous waste disposal] facilities." 132 Cong.Rec. S14,924 (daily ed. Oct. 3, 1986) (statement of Sen. Chafee). Because Congress perceived that few states had developed programs to assure continued disposal capacity in the long run, Congress amended CERCLA in 1986 by enacting the Superfund Amendments and Reauthorization Act ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613 (codified in scattered sections of 10, 26 & 42 U.S.C.). "Congress was concerned that certain states, because of political pressures and public opposition, were not able to create and to permit sufficient facilities within their borders to treat and securely dispose of (or manage) the amounts of wastes produced in those states." Office of Solid Waste and Emergency Response, U.S. EPA, Assurance of Hazardous Waste Capacity: Guidance to State Officials [hereinafter "EPA Guidance Doc."], at 2 (Dec.1988). See S.Rep. No. 11, 99th Cong., 1st Sess. 22 (1985) ("Pressures from local citizens place the political system in an extremely vulnerable position.... The broader social need for safe hazardous waste management facilities often has not been strongly represented in the ... process [of creating new facilities]. A common result has been ... no significant increase in hazardous waste capacity over the past several years.").

The provision of SARA at issue in this case, section 104(c)(9), 42 U.S.C. Sec. 9604(c)(9), requires that each state present a proposal to EPA showing that the state will have adequate capacity available to dispose of the hazardous wastes generated within the state for the next twenty years. ² If the state does not provide such capacity assurances deemed adequate by EPA, ³ the state is prohibited from receiving Superfund money for remedial cleanup actions taken within the state. ⁴

Congress recognized that--because of geological factors or for other reasons--every state may not be able to create new disposal facilities within its borders and will not be able to dispose of its own wastes within its own borders for the next twenty years. SARA contemplates that a state may meet its section 104(c)(9) capacity assurance requirements by planning to use other states' disposal facilities and privately owned disposal facilities. 132 Cong.Rec. S14,924 (daily ed. Oct. 3, 1986) (statement of Sen. Chafee). Section 104(c)(9) provides that a state may base its capacity assurance plan on such facilities if the state has entered into an agreement for the use of those facilities. 42 U.S.C. Sec. 9604(c)(9)(B). For example, a state that cannot safely dispose of its wastes within its borders (an exporting state) may reach agreements with another state or group of states (importing states) under which the importing states agree to allocate a portion of their disposal capacity to the exporting state. An exporting state may also contract with a privately owned waste management facility. See EPA Guidance Doc. at 3; S.Rep. No. 11, 99th Cong., 1st Sess. 22 (1985). SARA places the burden of making capacity assurances on the exporting (waste generating) state, and not on the importing state. SARA nowhere requires that an importing state enter into interstate or regional agreements, but most states will need to enter into such agreements because most states lack the capacity to dispose of all types of hazardous wastes within their borders. ⁵

In the light of SARA's capacity assurance requirement and the concern of Alabama's leaders over the large amounts of other states' hazardous wastes being disposed of in Alabama, ⁶ the Alabama legislature in 1989 enacted Ala.Code Sec. 22-30-11, popularly called the "Holley Bill." This provision prohibits the owner or operator of a commercial hazardous waste management facility located in Alabama from treating or disposing of hazardous wastes generated in a state other than Alabama, if the other state either (1) prohibits the treatment or disposal of hazardous waste within its borders and has no facility for such; or (2) has no facility existing within that state for the treatment or disposal of hazardous waste and has not entered into an interstate or regional agreement for the disposal of its wastes to which Alabama is a signatory. The Holley Bill also prohibits commercial waste management facilities in Alabama from contracting with a state other than Alabama to satisfy the other state's capacity assurance obligation. ⁷

Under authority of this bill, Alabama has issued a "blacklist" which, on September 13, 1989 (the effective date of the Holley Bill), precluded Emelle from accepting hazardous wastes from twenty-two states and the District of Columbia. ⁸ Between January 1, 1989 and October 1, 1989,...